The Manager vs Smt. Amruta W/O Ashok Khadimani
2022 Latest Caselaw 4082 Kant

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           IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 10TH DAY OF MARCH, 2022

                        PRESENT
      THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
                              AND
       THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
                MFA NO.102876/2018 (MV)
BETWEEN:

THE MANAGER
NATIONAL INSURANCE COMPANY LIMITED,
HOSPET BUSINESS CENTRE,
1ST FLOOR, WARD NO.29,
BYALALA COMPLEX,
BESIDE PRAGATHI GRAMEENA BANK
DAM ROAD, HOSAPETE,
TQ: HOSAPETE,
DIST: BALLARI-583203.
(POLICY NO.616003311510000917
VALID FROM 30/06/2015 TO 29/06/2016)
REPRESENTED BY ADMINISTRATIVE OFFICER.
                                          ... APPELLANT

(BY SRI. G N RAICHUR, ADV.)

AND

1 . SMT. AMRUTA W/O ASHOK HADIMANI
AGE: 26 YEARS,
R/O: MADAR ONI,
GAJENDRAGAD,
DIST: GADAG.

2 . AKSHYA KUMAR S/O ASHOK HADIMANI
                           2


AGE: 2 YEARS 4 MONTHS
(HIS M/G RESP NO.1)
R/O: MADAR ONI,
GAJENDRAGAD,
DIST: GADAG.

3 . DURAGAPPA S/O HANAMAPPA HADIMANI
AGE: 69 YEARS,
R/O: MADAR ONI,
GAJENDRAGAD,
DIST: GADAG.

4 . SMT.MARIYAVVA W/O DURAGAPPA HADIMANI
AGE: 62 YEARS,
R/O: MADAR ONI,
GAJENDRAGAD,
DIST: GADAG.

5 . BALAPPA S/O BEERAPPA GYANAPPANAVAR
AGE: 26 YEARS,
OCC: DRIVER OF MAHINDRA MAXIMO
BEARING NO.KA-37/9869,
R/O: MUNIRABAD,
TQ/DIST: KOPPAL.

6 . GIRISH S/O BHIMSEN JOSHI
AGE: 42 YEARS,
OCC: OWNER OF MAHINDRA MAXIMO
BEARING NO.KA-37/9869,
R/O: MUNIRABAD,
TQ/DIST: KOPPAL.                  ...RESPONDENTS

(By KUMARI RANJITA ALAGAWADI, ADV. FOR
 SRI. B. V.SOMAPUR, ADV. FOR R 1 TO 4;
 R5- DISPENSED WITH;
 R6- SERVED)

     MFA FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 07.05.2018
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PASSED IN MVC NO.72/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, RON, AWARDING COMPENSATION OF Rs.16,86,500/-
WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL
ITS REALISATION.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, K.S. HEMALEKHA J., DELIVERED THE FOLLOWING:

                      JUDGMENT

The insurance company has preferred this appeal,

assailing the judgment and award dated 07.05.2018 passed

by the Senior Civil Judge & Addl. MACT, Ron, (hereinafter

referred to as 'the Tribunal' for short) in MVC No.72/2016

on the ground of liability as well as quantum.

2. The claimants have filed a claim petition before

the Tribunal, seeking compensation of Rs.51,00,000/- on

account of death of one Ashok S/o Durgappa Hadimani,

who died in a fatal road traffic accident on 14.7.2015, when

the deceased was proceeding on his motorcycle bearing

chassis No.MBLHA10AMEHM74456, the driver of the

Mahindra Maximo bearing registration No.KA-37/9869

drove the same in a rash and negligent manner and dashed

against the motorcycle of the deceased and due to the

impact of the accident the deceased fell down and sustained

grievous injury and succumbed to the injuries during

treatment. It is averred that the deceased was hale and

healthy at the time of accident and was working as an

agriculturist and also was working as a Hamal in APMC Yard

and earning Rs.15,000/- p.m. from agricultural and

Rs.5,000/- by doing Hamali in APMC Yard. The claimants

are the wife, child and parents of the deceased, it is averred

that the deceased was the sole earning member of the

family and the claimants were solely dependent upon the

income of the deceased.

3. Pursuant to issuance of summons by the

Tribunal, respondent Nos.1 and 2 though served with the

notice, did not appear and were placed ex-parte.

Respondent No.3-insurance company appeared and filed

their objections.

4. Respondent No.3-Insurance company contended

that the driver of the offending vehicle bearing registration

No.KA-37/9869 did not possess valid and effective driving

license to drive a particular type of vehicle. It is also

averred that the requirement of Rule 3 of the Central Motor

Vehicles Rules, 1989, were not satisfied and the alleged

vehicle was used as a hire or reward on the date of the

accident violating the terms of the Insurance Policy and the

fitness certificate of the said vehicle had expired as on the

date of the accident and thus, sought to absolve the

liability.

5. On the basis of the pleadings, the Tribunal

framed the following:

ISSUES

1. Whether the petitioners being the legal representatives of Late. Ashok S/o. Duragappa Hadimani, prove that the said Ashok S/o. Duragappa Hadimani, was died, consequent upon the motor vehicle accident

that took place on 14.07.2015 at about 1.00 p.m. on B. Hosalli-Hyati road, near Hyati Village of Koppal Taluk, due to rash and negligent driving of Mahindra Maximo bearing Reg. No.KA-37/9869 being driven by its drive in an actionable claim?

2. Whether the respondent No.3 proves that the drive of the alleged vehicle was not having a valid and effective driving license at the time of the accident, and violated the terms and conditions of the insurance policy?

3. Whether the petitioners are entitled for compensation? If so, for what amount and from whom?

4. What order or award?

6. In order to substantiate their claim the claimant

No.1-wife of the deceased examined herself as PW.1 and

got marked documents at Exs.P1 to P14. On behalf of

respondents, respondent No.3-Senior Assistant of the

company examined himself as RW.1 and got marked

documents at Exs.R1 and Ex.R2.

7. The Tribunal, considering the pleadings,

evidence and material on record held that the accident

occurred due to the rash and negligent driving of the driver

of the Mahindra Maximo bearing registration No.KA-

37/9869 and also held that the driver of the offending

vehicle had valid and effective driving license to drive the

particular type of vehicle as on the date of the accident and

held that the expiry of the fitness certificate or the permit

will not absolve the liability of the Insurance company and

thus, fastened the liability on the Insurance company and

awarded compensation of Rs.16,86,500/- with interest at

8% per annum under the following heads:-

1.    Loss of dependency                            Rs.16,06,500/-
2.    Loss of consortium                               Rs.40,000/-
3.    Loss of estate                                   Rs.15,000/-
4.    Funeral Expenses                                 Rs.15,000/-
5.    Transportation of Dead body                      Rs.10,000/-
      Total                                        Rs.16,86,500/-

8. Aggrieved by the compensation awarded by the

Tribunal and fastening the liability on the insurance

company, the present appeal is filed.

9. Heard the learned counsel for the appellant-

insurance company and the learned counsel for

respondents/claimants.

10. Sri. G.N. Raichur, learned counsel for the

appellant-insurance company would contend that the owner

of the offending vehicle has violated the terms of the policy

and the driver of the Mahindra Maximo bearing No.KA-

37/9869 did not possess a valid and effective driving license

to drive the Mahindra Maximo as on the date of the

accident. It is further contended that the deceased was not

wearing helmet and non wearing of helmet amounts to

violation of Section 129 of the M.V. Act. It is further

contended that the fastening of the liability on the

insurance company is without considering the fact that the

fitness certificate of the Mahindra Maximo had expired as on

the date of the accident and thus, contended that in view of

the non-availability of the fitness certificate as on the date

of the accident, the insurance company needs to be

exonerated the liability.

11. Insofar as quantum of compensation awarded is

concerned, it is contended that the Tribunal has awarded

exorbitant amount without considering the settled

preposition of law in view of the dictum of the Apex Court.

12. Per contra, Smt. Ranjita Alagawadi for Sri. B.V.

Somapur, learned counsel for respondents/claimants would

contend that the judgment and award passed by the

Tribunal is just and proper and does not call for any

interference in the hands of this Court and would contend

that the Tribunal has rightly come to the conclusion that the

driver of the Mahindra Maximo was holding valid and

effective driving license as on the date of the accident and

insofar as the permit is concerned, it is contended that the

non possessing of fitness certificate cannot be a ground for

the insurance company to seek exoneration from its

liability. It is also contended that the contention of the

Insurance company that the deceased was not wearing a

helmet amounts to violation of Section 129 of the M.V. Act

is not sustainable in view of the fact that the accident

occurred due to the actionable negligence on the part of the

driver of the Mahindra Maximo and not due to the

attributable negligence on part of the deceased and thus,

sought to dismiss the appeal.

13. In order to buttress her submission, the learned

counsel for the respondents relied upon the dictum of the

Hon'ble Apex Court in the case of N.Jayashree and

Others Vs. Cholamandalam MS General Insurance

company Ltd. reported in 2021 SCC OnLine SC 97 and

in the case of Mukund Dewangan vs. Oriental

Insurance company Limited and Others reported in

(2016) 4 SCC 298.

14. Having heard the learned counsel for the parties,

the following points would arise for consideration in this

appeal:

"i) Whether the Insurance Company has made out a case for absolving the liability fastened and as such, the judgment and award passed by the Tribunal warrants any interference by this Court?

ii) Whether the quantum of compensation awarded by the Tribunal is just, fair and proper compensation?

Point No.1

15. The fact that the deceased Ashok Durgappa

Hadimani succumbed to the injuries sustained by him in a

road traffic accident that occurred on 14.07.2015 is not in

dispute. On the ground of liability, the insurance company

has filed this appeal contending that the driver of the

offending vehicle did not possess a valid and effective

driving license to drive the Mahindra Maximo as on the date

of the accident. The said issue is covered by the decision of

the Hon'ble Apex Court in Mukund Dewangan case

(stated supra), wherein the Hon'ble Apex Court held that a

person holding LMV license is competent to drive a

transport vehicle and Ex.P10-driving license clearly

establishes the fact that as on the date of the accident, the

driver of the Mahendra Maximo possessed driving license

which is valid upto 09.11.2034 and thus, the contention of

the insurance company that the driver of the Mahindra

Maximo did not possess a valid and effective driving license

is not acceptable.

16. Insofar as the second contention of the

Insurance company that the deceased was not wearing the

helmet and as such, the Insurance company is not liable

does not appraise the mind of this Court.

17. Section 129 of the Motor Vehicles Act reads as

under:-

"129. Wearing of protective headgear.--Every person driving or riding (otherwise than in a side car, on a motor cycle of any class or description) shall, while in a public place, wear 1[protective headgear conforming to the standards of Bureau of Indian Standards]:

Provided that the provision of this sections shall not apply to a person who is a Sikh, if he is, while driving or riding on the motor cycle, in a public place, wearing a turban:

Provided further that the State Government may, by such rules, provide for such exceptions as it may think fit.

Explanation.--"Protective headgear" means a helmet which,--

(a) by virtue of its shape, material and construction, could reasonably be expected to afford to the person driving or riding on a motor cycle a degree of protection from injury in the event of an accident; and

(b) is securely fastened to the head of the wearer by means of straps or other fastenings provided on the headgear."

It is very clear from the provision that even though

the rider of the motorcycle has violated Section 129 of the

M.V. Act, the insurance company is liable to pay

compensation. The M.V. Act contemplates wearing of

helmet as mandatory and the non wearing of helmet with

specifications mentioned as per Section 129 of the M.V. Act

is illegal and the Act provides with a fine for Rs.1,000/-

and the department can also disqualify the driving licence

for three months. However, the Act does not provide for

absolving the liability of the insurance company on the

ground of non wearing of helmet by the rider. However,

bearing in mind the number of deaths and grievous injury

sustained due to non wearing of helmet by the motorists,

even though there being no attributable negligence on the

part of the rider we cannot turn a blind non-wearing of

helmets despite legal stipulation. In order to maintain

some social measure, it is necessary that the rider should

wear a helmet in order to save himself from the

consequence of the accident. Driving without helmet is

risking ones own life.

Thus, it is difficult agree with the contention of the

insurance company that non wearing of "helmet" could be

taken as a ground for fixing contributory negligence on part

of the rider, though non wearing of "helmet" is an offence

under the relevant provisions of M.V.Act, what is relevant to

consider with regard to apportionment of negligence is

whether the party concerned had any role/part in causing of

contribution to the accident. Negligence cannot be fixed on

the shoulders of the rider of the vehicle merely for not

wearing the helmet. Non wearing of 'helmet' and resulting

death due to the injury, it is only a 'consequence' leading to

the death of the deceased. Probably wearing a helmet, his

life could have been saved or the severity of the injury

could be less. However, the said accident is not due to the

non wearing of 'helmet', therefore, it cannot be said that

there was contributory negligence on part of the rider due

to which the accident has occurred. Thus, this contention

of the insurance company is not acceptable. In order to

have social legislation the fact should be ordinated that the

wearing of helmet is a prime objective of the legislative to

see that even if an accident has occurred, he would have

been saved from the accident, if he would have worn the

helmet. Though there being no negligence on part of the

rider of the vehicle, but, due to non wearing of helmet he

had to succumbed to the injuries sustained due to the

accident. Thus, there may be a lapse which could be

attributable to the deceased. But however, in view of the

present facts and circumstances of the case, for the reasons

stated supra, we are of the considered view that non

wearing of helmet by the deceased will not absolve the

liability of the Insurance company.

18. Insofar as the third contention of the insurance

company that the permit or the fitness certificate ceased to

exists as on the date of the accident and as such, the

insurance company is to be exonerated from the liability is

not sustainable. The said issue is covered by the decision

of the Hon'ble Apex Court in the case of Amrit Paul Singh

vs. TATA AIG General Insurance Co. Ltd reported in

2018 8 SCC 492 wherein the Hon'ble Apex Court

directed to pay the claim amount awarded by the Tribunal

in the first instance by the Insurance company with liberty

to recover the same from the owner of the vehicle in

accordance with law, if the terms of the policy had been

violated and the subsequent judgment in the case of New

India Assurance Co. Ltd. Bijapur by its Divisional

Manger Vs. Yallavva and Another reported in ILR 2020

KAR 2239, at para Nos.38 & 57 which read as under:-

"38. To this, another nuance may be added.

What would be the position when the insurer is able to prove a breach of the policy, but the said breach is not a fundamental breach or the breach did not contribute to the cause of the accident but what could be termed as an innocent breach and not an intentional one. In such a case also, the

Insurance Company must pay to the third party and recover from the insured. This could be illustrated with reference to the vehicle not being covered by a permit to ply for hire or reward. The Hon'ble Supreme Court in the case of Amrit Paul Singh vs. TATA AIG General Insurance Co. Ltd [AIR 2018 SC 2662], held that the vehicle not having a permit at all and being used for hire or reward is a case of fundamental breach and hence, the insurer though absolved of its liability had to pay the compensation and recovery order was made in the said case permitting recovery from the insured. Also, when a vehicle had a permit to ply within a particular area or on a route deviated from the said area or route and was plying in another area or route and an accident occurred, then it is not a case of fundamental breach, although, there is a violation of the terms of the policy. In such an event also, the pay and recovery order has been made in the case of Rani & Others vs. National Insurance Company Ltd. [(2018) 8 SCC 492], by the Hon'ble Supreme Court.

57. In the result, the questions referred to in this appeal are answered as under:

i) Having regard to Section 149(1) read with Section 149(7) whenever a case falls under Section 149(2)(a) and the same is successfully established or proved by the Insurance Company, as per the twin tests laid by the Hon'ble Supreme Court in Swaran Singh, nevertheless, the insurer or Insurance Company is liable to satisfy the award vis-à-vis a third party and is entitled to recover from the insured. This is irrespective of, the policy being an Act policy in terms of Section 147 pertaining to compulsory coverage of risks of third parties and other classes of persons stated therein or a policy covering other risks by specific contract being entered into in that regard and where additional premium is paid by the insured i.e., a contractual policy.

ii) Thus, the rule of pay and recover is applicable in view of the mandate in Section 149(4) of the Act and even if there is a breach of the terms of the insurance policy, the insurer is bound to satisfy the judgment and award as if it were a judgment debtor, even if it satisfies the twin tests enunciated by the Hon'ble Supreme Court under Section 149(4)(a) of the Act.

iii) If the Insurance Company makes out a case under Section 149(2)(b) of the Act, then also the Insurance Company has to satisfy the award, as it is

the duty of the Insurance Company to indemnify the insured on the basis of the policy of the insurance and even when the contract of insurance itself is void, nevertheless the liability to indemnify the insured would arise and insurer is entitled to recover from the insured.

iv) Thus, in a case where Section 149(2)(b) applies and the Insurance Company successfully establishes that the policy is void, in such a case also, the insurer is not absolved of its liability to satisfy the judgment or award as rights or obligations would flow even from a policy which is void vis-à-vis third party. In such a case, the insurer is not completely absolved of its liability, the insured would have to satisfy the award vis-à-vis the third party and recover from the insured the amount paid to the third party and may also have a right to seek damages from the insured.

v) The judgment of the Division Bench of this Court in Subramanyam, holding that a pay and recovery order cannot be made as there is no liability to pay or satisfy the award or decree in respect of a case falling under Section 149(2) is not correct. Hence, that portion of the judgment in Subramanyam, which states that if the case falls within the scope of Section 149(2) of the Act and the insurer is successful in establishing any of the defences as stated therein, it would be completely absolved of its liability to satisfy the award is also not correct and to that extent, it is held to be bad in law.

vi) Article 142 of the Constitution of India being a power granted under the Constitution only to the Supreme Court can be exercised in appropriate cases only by the Apex Court. Exercise of power under Article 142 by the Hon'ble Supreme Court in a particular case cannot be a precedent for other Courts

and Tribunals to exercise such a power unless the same is indicated to be a precedent by the Apex Court.

In the instant case, the appellant - Insurance Company was directed to discharge its liability, subject to the result of this reference. The vehicle involved in the instant case is a goods vehicle and the injured claimant was traveling in a goods carriage. The Tribunal awarded compensation of Rs.1,000/- with interest at 6% p.a. from the date of petition till deposit and to recover the same from the insured - respondent No.2 herein. If the appellant

- insurer has deposited the amount, it is entitled to recover the said amount from the first respondent - insured, as this is a case which falls under Section 149(2)(a) of the Act as the insured claimant was permitted to travel as a passenger in a goods vehicle namely, tempo."

Accordingly, point No.1 is answered in the negative as

against the insurance company.

Point No.2

Insofar as the quantum of compensation is concerned,

a perusal of the impugned judgment and award would

depict that the Tribunal had taken the notional income of

the deceased at Rs.7,000/- and 50% is added towards

future prospects. Further, the Tribunal has awarded a sum

of Rs.40,000/- under the head loss of consortium and

Rs.15,000/- each towards funeral expenses and loss of

estate, an another sum of Rs.10,000/- is awarded towards

transportation of dead body. Thus, awarded a total

compensation of Rs.16,86,500/- with interest at the rate of

6% per annum from the date of filing of the petition till

realization is awarded. In view of the dictum of the Hon'ble

Apex Court in the case of National Insurance company

Limited vs. Pranay Sethi and others reported in (2017)

16 SCC 680, the future prospects to be added is 40%. In

view of the decision rendered by the Hon'ble Apex Court in

the case of Sarla Verma and others V. Delhi Transport

Corporation and another reported in 2009 ACJ 1298,

considering the age of the deceased as '28' years applying

the multiplier of '17' and considering the number of

dependents deducting 1/4th towards personal expenses of

the deceased, the reassessed award under the head of loss

of dependency would be Rs.14,99,400/-. However, the

Tribunal has awarded Rs.16,06,500/- towards loss of

dependency. Re-assessing the award of compensation as

per the dictum of the Apex Court in the case of Pranay

Sethi, Sarla Verma (stated supra), and in view of

Satinder Kaur @ Satwinder Kaur & and Others Vs.

United India Insurance Co. Ltd. reported in 2020 SC

3076, Magma General Insurance Co. Ltd. Vs. Nanu

Ram and others reported in 2018 ACJ 2782, there is

meager difference of Rs.12,900/- which in our considered

view does not call for any interference and thus, the award

of compensation by the Tribunal appears to be just, fair and

proper and does not call for any interference. Accordingly,

we answer the point No.2 in the affirmative against the

Insurance company.

15. In the result, we pass the following:-

ORDER

i) The appeal filed by the Insurance Company is hereby

dismissed.

ii) The impugned judgment and award dated

07.05.2018 passed by the Tribunal in MVC

No.72/2016 is hereby confirmed.

iii) The appellant-insurance company is directed to pay

the compensation awarded by the Tribunal in favour

of the claimants and deposit the same with upto date

interest within a period of twelve weeks from the

date of receipt of a certified copy of this judgment.

iv) Liberty is reserved in favour of the appellant-

insurance company to pay the said amount at the

first instance and recover the same from respondent

No.2 owner of the vehicle bearing registration

No.KA37-9869 in accordance with law.

v) The amount in deposit before this Court is directed

to be transmitted to the Tribunal for disbursement.

vi) Registry is directed to send back the Trial Court

records to the Tribunal forthwith.

vii) No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE

Vmb